THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 19578/02 by Zahide Songül ÖZATA against Turkey

The European Court of Human Rights (Third Section), sitting on 3 June 2004 as a Chamber composed of:

Mr G. Ress , President , Mr R. Türmen , Mr B. Zupančič , Mr J. Hedigan , Mrs H.S. Greve , Mr K. Traja , Mrs A. Gyulumyan, judges , and Mr M. Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 15 April 2002,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Zahide Songul Özata, is a Turkish national, who was born in 1948 and lives in Ankara. She is represented before the Court by Mr M.N. Terzi, a lawyer practising in Izmir.

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was arrested in Antalya on 21 November 1995 by the anti-terrorist branch of the Antalya Security Directorate on suspicion of membership of the PKK. She was detained until 29 November 1995 and on the same date she was released.

In the evening of 29 November 1995, following her release from police custody, the applicant went to a private hospital in Antalya since she suffered from hyper-tension during the time she was held in police custody.

On 25 December 1995 the Izmir Public Prosecutor before the State Security Court decided not to bring charges against the applicant on the ground of lack of evidence.

On 13 February 1996, invoking paragraph 6 of Article 1 and paragraph 1 of Article 2 of the Law No. 466, the applicant brought an action before the Antalya Assize Court against the Treasury requesting 511,820,000 Turkish Liras (TRL) by way of compensation for her detention between 21 and 29 November 1995.

On 19 July 1996 the Antalya Assize Court held that the applicant be awarded compensation for the pecuniary damage  incurred by her as a result of her hospital expenses and for non-pecuniary damage in respect of her detention, calculated on the basis of her personal, financial and social status.

On 1 August 1996 the applicant appealed against this judgment, claiming that the amount of the compensation awarded for non-pecuniary damage was insufficient.

On 27 May 1997 the Court of Cassation quashed the judgment of the Assize Court on the ground that the applicant was not treated in a State hospital, but in a private hospital after her release from police custody. It further held that therefore it could not be established whether her hyper-tension condition was caused solely by the fact that she was held in police custody for nine days.

On 8 June 2000, based on a medical report dated 20 December 1999 drafted by the State Forensic Medicine Institution regarding the applicant's hyper-tension condition, the Assize Court held that the applicant be awarded only non-pecuniary damages since the above-mentioned report stated that the applicant's hyper-tension condition was not caused by the fact that she was held in police custody for nine days.

On 28 June 2001 the applicant appealed against that judgment of 8 June 2000, claiming that she must be awarded both pecuniary and non-pecuniary damages with the interest that has accrued from the date of claim.

On 18 December 2000 the Court of Cassation rejected the applicant's request for appeal on the ground that the Assize Court rendered its judgment of 8 June 2000 before the Court of Cassation's previous judgment of 27 May 1997 was served on the applicant's attorney.

On 30 May 2001 the Assize Court held that the applicant be awarded only non-pecuniary damages.

On 19 July 2001 the applicant appealed against this judgment.

On 24 December 2001 the Court of Cassation upheld the Assize Court's judgment of 30 May 2001.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that she was deprived of her right to an oral hearing on her compensation claim. S he further asserts that the amount of compensation provided insufficient reparation for her wrongful arrest and detention .

Invoking Article 6 § 3 (b) of the Convention the applicant maintains that neither the observations of the Public Prosecutor before the Antalya Assize Court nor the observations of the Chief Public Prosecutor on her appeal was communicated to her.

Invoking Article 6 § 1 of the Convention t he applicant complains that the compensation proceedings were not concluded within a “reasonable time”.

The applicant complains under Article 5 § 1 of the Convention claiming that she was unlawfully deprived of her liberty.

Invoking Article 5 § 5 of the Convention the applicant claims that the amount of compensation and legal costs and expenses awarded by the domestic court was extremely low and therefore unjust .

Invoking Article 1 of Protocol No. 1 the applicant complains that the non-pecuniary damage that was awarded to her by the court has still not been paid to her.

The applicant finally complains under Article 13 of the Convention that there are no effective remedies in domestic law in respect of her Convention grievances.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention that she was deprived of her right to an oral hearing on her compensation claim. S he further asserts under the same heading that the amount of compensation was insufficient reparation for her wrongful arrest and detention .

The applicant complains under Article 6 § 3 (b) that the Public Prosecutor's written submissions to the Antalya Assize Court and the Chief Public Prosecutor's written submissions to the Court of Cassation were not transmitted to her. S he was thus denied the right to respond to the same authorities. The Court has decided to examine this complaint of the applicant under Article 6 § 1 of the Convention. T he applicant finally complains under the same heading that her compensation proceedings were not concluded within a “reasonable time”.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant complains under Article 5 § 1 of the Convention that she was unlawfully deprived of her liberty.

The Court notes that the applicant's custody period ended on 29 November 1995. The applicant introduced her application on 15 May 2002, i.e. more than six months later. It follows that this complaint has been introduced out of time and must be rejected under Article 35 § 4 of the Convention.

3. Invoking Article 5 § 5 she further claims that the amount of compensation and legal costs and expenses awarded by the domestic court was extremely low and therefore unjust .

The Court recalls that under Article 5 § 5 of the Convention the right to compensation for any material or moral damage sustained as a result of a detention is conditioned on a breach of one of the paragraphs of Article 5. Accordingly, the Court cannot consider an applicant's claim exclusively based on Article 5 § 5 unless a breach of Article 5 §§ 1 to 4 has been established either directly or in substance and Article 5 § 5 of the Convention does not entitle the applicants to a particular amount of compensation.

Under these circumstances, the complaint under Article 5 § 5 is manifestly ill-founded and must be rejected in accordance with Article 35 § 3 of the Convention.

4. Invoking Article 1 of Protocol No. 1 the applicant complains that the non-pecuniary damage that was awarded to her by the court has still not been paid to her.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

5. The Court observes that the applicant's complaint under Article 13 of the Convention must be examined under Article 5 § 4 of the Convention. The Court notes that the applicant availed herself of the provisions of section 1 of Law no. 466 in order to claim compensation. Therefore, she had an enforceable right to compensation for her claim of being unlawfully arrested or detained. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning the lack of public hearing, the lack of communication of the observations of the Public Prosecutor before the Antalya Assize Court and the Chief Public Prosecutor before the Court of Cassation, the length of compensation proceedings, and the non-payment of the compensation that was awarded by the court;

Declares the remainder of the application inadmissible.

Mark Villiger Georg Ress              Deputy Registrar President